WORKPLACE INVESTIGATIONS: AN EMPLOYER’S GUIDE
February 2001
At some point every employer faces the question “Should I investigate this employee’s comment(s) or complaint(s)?” Employers should understand that various state and federal laws impose a duty on employers to investigate complaints. For example:
- Title VII of the 1974 Civil Rights Act requires employers to investigate charges of discrimination, including sexual harassment claims.
- The Equal Employment Opportunity Commission (EEOC), the federal agency charged with implementing Title VII, says an employer may be liable for failing to remedy a hostile or offensive work environment.
- The California Fair Employment and Housing Act (FEHA) specifically requires employers to investigate all complaints of sexual harassment.
What Triggers an Investigation?
Still, you may be asking yourself, “How do I know what triggers my duty to investigate?” This question becomes even more difficult to answer when allegations are made in passing at the water cooler, the charges are vague and stale, or the complaint implicates a high-level manager, president or CEO.
The best answer is that employers should investigate any claim of discrimination or harassment, no matter how small or large, regardless of who is charged. Conducting a proper, timely investigation is your best defense if a lawsuit is filed.
This does not mean that every time someone at work becomes offended about a comment or behavior you have to run out and retain a private investigator. However, employers should always discuss the substance of the complaint with the complainant and follow up with a discussion with the alleged accused.
Interviewing the Complainant
Following are five important points to remember about how to interview a complainant.
- Gain the complainant’s confidence in your ability to conduct an unbiased investigation.
- Identify all the issues and specific facts to be investigated. Feel free to speak to the complainant more than once to gather all the allegations s/he presents.
- Gather detailed factual information about each incident the complainant considers to be harassment or discrimination.
- Keep a complete record of the information you gather.
- Maintain the confidentiality and integrity of the investigation process.
Also, remember to tell the complainant that:
- The employer will not tolerate retaliation for making a report of harassment and/or discrimination and that the complainant should immediately report retaliation if it occurs. Be sure to tell the complainant to whom s/he should report retaliation.
- The employer takes all complaints of harassment and discrimination seriously.
- Confidentiality will be protected to the extent possible to preserve all parties’ privacy. However, the alleged accused has a right to know the allegations against him/her.
Interviewing the Alleged Accused
Following are five important points to remember about how to interview the alleged accused.
1. Remember the alleged accused is innocent until after you have gathered all relevant facts, reviewed all relevant documents and assessed the parties’ credibility. It is the employer who must decide that the alleged accused violated the company’s policy against harassment and/or discrimination in the workplace.
2. Review all relevant documents, such as the personnel file, before speaking with the alleged accused to assess whether the alleged accused has ever been investigated before. You also should try to determine whether the alleged accused has a motive to harass or discriminate against another employee and whether the complainant was recently involved in some other personnel matter involving the alleged accused.
3. Maintain the confidentiality and integrity of the investigation process.
4. Be sure to chronologically explain every allegation to the alleged accused, including dates, times and witnesses. The alleged accused has a due process right to know what the allegations against him or her are so s/he can provide you with enough information to corroborate his/her side of the story.
5. As with any investigation interview, you should make a record of the information.
Also, it is important to remember to tell the alleged accused that:
- S/he should not interfere with the investigation by talking about the investigation with other employees, especially employees s/he has requested the investigator to interview as part of the process.
- The employer will not tolerate retaliation against someone who has reported harassment and/or discrimination, and the complainant has been directed to immediately report retaliation if it occurs.
Report the Results
Once the investigation is completed, the employer should meet with the investigator to discuss the findings, and make a decision about the appropriate action, if any, to be taken. Even if there will be no disciplinary action, both the complainant and the accused should be told about the results of the investigation.
Investigations are not always easy, but they must not be avoided. Following the guidelines outlined in this article will aid employers through this crucial process.
WORKPLACE INVESTIGATIONS
20 QUESTIONS TO ASK THE COMPLAINANT
February 2001
When you interview the complainant, make sure your questions include the following:
1 Who committed the alleged harassment?
2 What exactly occurred and/or what was said?
3 When did the incident occur? Are the actions still occurring?
4 Where did the incident occur?
5 How often did the incident(s) occur?
6 How did the complainant react?
7 What was the complainant’s response when the incident occurred?
8 Did the complainant report the alleged harassment? To whom? When? If not, why not?
9 What was the complainant’s response after the incident?
10 How did the harassment affect the complainant?
11 Has the complainant’s job been affected in any way?
12 What effect did the incident have on the complainant’s work environment?
13 Has the complainant been offended in the workplace by anything before the incident?
14 Why did the complainant choose this time to complain?
15 Are there any witnesses to the complainant’s allegation(s)?
16 Is there any documentation corroborating the complainant’s allegation(s)?
17 Did the complainant tell anyone about the incident? When?
18 Does the complainant have any knowledge (personal or otherwise) that the alleged harasser ever harassed anyone else?
19 Does the complainant know whether any other employee has ever reported similar conduct by the alleged harasser?
20 How would the complainant like to see the situation resolved?
WORKPLACE INVESTIGATIONS
10 QUESTIONS TO ASK THE ALLEGED ACCUSED
February 2001
When you interview the alleged accused, make sure your questions include the following:
1 Whom would s/he like you to interview as part of the investigation?
2 Are there any witnesses to his or her side of the story?
3 Does the alleged accused have any reason to believe the complainant is not telling the truth? Why or why not?
4 What benefit would the complainant get from fabricating his or her allegations?
5 Does the alleged accused know of any other complaint of harassment or discrimination the employee has lodged with the employer or any other employer?
6 Has the alleged accused ever been accused of harassment or discrimination before, in this workplace or elsewhere?
7 Did the alleged accused have a personal relationship with the complainant?
8 Does the alleged accused have any documentation that the behavior in question was consensual? Documentation can include e-mail or voice-mail messages, cards or letters, for example.
9 Has the complainant ever told the alleged accused that s/he does not like certain behavior and asked him or her to stop?
10 Has the complainant initiated any jokes, gestures or behaviors that could be considered to be harassing or discriminatory?
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